IN THE UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT

                          _____________________

                               No. 94-40549
                          _____________________



                  UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,
                  v.


                  L.C. LISTER, JR.,

                                                Defendant-Appellant.


_________________________________________________________________

           Appeal from the United States District Court
                 for the Eastern District of Texas
_________________________________________________________________

                              (May 5, 1995)

Before KING and JONES, Circuit Judges, and LAKE, District Judge.*

PER CURIAM:

      L.C. Lister, Jr. appeals from the sentencing determination of

the   district   court,   arguing   that   an    obstruction   of   justice

enhancement was improperly applied and that an acceptance of

responsibility deduction was improperly denied.            We affirm the

sentence imposed by the district court.




      *
       District Judge of the Southern District of Texas, sitting
by designation.
               I.    FACTUAL AND PROCEDURAL BACKGROUND

     In January of 1991, an investigation began into Lister's

involvement in the distribution of "crack" cocaine in the East

Texas area. Two cooperating individuals were employed to engage in

various crack purchases from Lister.       On July 9, 1991, Lister was

charged in a five-count indictment with conspiracy to possess

cocaine base with intent to distribute and with distribution of

cocaine base. On October 10, 1991, after the government had rested

its case, Lister pled guilty to count two of the indictment

involving the distribution of cocaine base.

     The   presentence    report    ("PSR")   recommended   a   two-level

increase in Lister's offense level for obstruction of justice, and

it recommended against awarding a two-level decrease in Lister's

offense level for acceptance of responsibility. The district court

overruled Lister's objections to the PSR and adopted the findings

in the report.      On January 8, 1992, Lister was sentenced to 151

months imprisonment followed by a four-year term of supervised

relief.

     The sentencing enhancement for obstruction of justice was

based upon a May 20, 1991 sale of crack cocaine to a cooperating

individual named Katy Demond. While in Demond's automobile, Demond

gave Lister $2,100 in exchange for the crack cocaine.             Lister

indicated that Demond was $100 short on the payment, and he began

looking around Demond's vehicle.          He asked to see a picture

identification of Demond, and he stated his belief that Demond

might be a police officer.         According to the PSR, Lister stated


                                     2
that if he got "busted," he would only have to make one telephone

call to have Demond "mess[ed] up."     Lister further stated:

     I'm just saying . . . you know what I'm talking about .
     . . these men will kill . . . they don't give a damn who
     it is . . . something would happen. It's going to be bad
     luck I'm telling you. . . . They don't give a damn about
     kids or nothing . . . They come . . . They blow your
     fucking house up. I'm telling you right now . . . You
     can tell me you can go snitch on everybody else but don't
     snitch on me . . . .

Lister then began searching Demond's automobile for possible hidden

microphones, but he eventually sold Demond two ounces of crack.

The transaction was monitored and audiotaped by case agents.

     Lister does not challenge his underlying conviction; instead,

he only appeals from his sentencing determination.       According to

Lister, he did not "willfully" obstruct justice because he "did not

know that he was under investigation by any authorities or that

these individuals were potential witnesses against him." Moreover,

Lister claims that the district court erroneously denied him a

sentence reduction for acceptance of responsibility.      We disagree

with Lister's contentions, but before discussing his claims, we

address a threshold issue involving our jurisdiction to hear this

appeal.

                   II.   ANALYSIS AND DISCUSSION

                          A.    Jurisdiction

     After   his   conviction    and   sentencing,   Lister   did   not

immediately appeal.   He filed a motion pursuant to 28 U.S.C. § 2255

alleging that he received ineffective assistance of counsel because

his attorney failed to appeal his sentence.     The magistrate judge

recommended 1) that the motion be dismissed without prejudice; 2)

                                   3
that Lister's judgment of conviction be reinstated on the docket of

the district court; and 3) that Lister be given ten days from

receipt of the final judgment to file his notice of appeal.                The

district    court   adopted   the    report    and   recommendation   of   the

magistrate judge and ordered the reinstatement of Lister's judgment

of conviction.      The court also advised Lister that he could file

his appeal within ten days of receiving the order.

     The district court's order of reinstatement was entered on May

13, 1994.    Return receipts in the record indicate that the order

was received by Lister's attorney, C. Bruce Abraham, on May 14,

1994, and by Lister himself on May 17, 1994.              On June 8, 1994,

Abraham filed a notice of appeal in which he represented that he

received the order on May 31, 1994.           On June 17, 1994, Lister also

filed a notice of appeal, together with a motion for appointment of

appellate counsel.1     On July 7, 1994, the district court granted

Lister's motion and appointed the Federal Public Defender to

represent Lister on appeal.

     Because the first notice of appeal was apparently filed more

than ten days after receipt of the order, our jurisdiction to hear

this appeal is in question.         We have long held that, if necessary,

an examination of the basis of our jurisdiction must occur on our

own motion.     See Mosley v. Cozby, 

, 660 (5th Cir.

1987).     Lister's ten-day period for filing his appeal elapsed on

May 24, 1994.       Under Federal Rule of Appellate Procedure 4(b),

     1
          Lister requested appellate counsel because Abraham had
recently accepted employment as an Assistant Attorney General for
the State of Texas.

                                       4
however, the district court may extend the time for filing a notice

of appeal for a period of up to thirty days if "excusable neglect"

is found.      In United States v. Quimby, 

, 89 (5th Cir.

Unit A Feb. 1981), we concluded that the district court's ruling on

the motion to appoint counsel and to allow appeal in forma pauperis

constituted such a finding of "excusable neglect" when the notice

of appeal was untimely.         Following Quimby, therefore, the district

court's ruling on Lister's motion for appointment of appellate

counsel was tantamount to an "excusable neglect" finding, and as

such, we have jurisdiction over Lister's appeal.

                         B.    Obstruction of Justice

     Lister objected to the upward adjustment in his sentence for

obstruction of justice, but the district court overruled his

objection and adopted the PSR in its entirety. On appeal, Lister's

primary contention is that he did not "willfully" obstruct justice

because he was unaware that he was the subject of an investigation

and that Katy Demond was a witness for the government.              According

to the PSR, before threatening Demond, Lister "stated that he

believed that [Demond] might be a police officer," and the PSR also

noted   that    "[t]he    defendant     made   specific   threats    to   the

confidential informant when he suspected that [she] might be an

undercover officer."          The PSR implied, however, that knowledge or

awareness of an investigation was irrelevant to the obstruction of

justice enhancement, as the PSR stated that the relevant sentencing

guideline "does not state that the defendant must have prior




                                        5
knowledge that an official investigation has been undertaken."2          As

mentioned, the district court adopted the findings of the PSR in

their entirety.

     The sentencing court's interpretations of the guidelines,

being conclusions of law, are reviewed de novo.           United States v.

McCaskey, 

, 372 (5th Cir. 1993), cert. denied, 

(1994).      We conclude that a defendant's awareness of the

commencement of an investigation is relevant and necessary for the

obstruction of justice enhancement.       As we will explain, however,

the district court made the required findings in this case, and as

such, the guidelines were properly applied.

     The obstruction of justice enhancement, U.S.S.G. § 3C1.1,

states that "[i]f the defendant willfully obstructed or impeded, or

attempted to obstruct or impede, the administration of justice

during the investigation, prosecution, or sentencing of the instant

offense, increase the offense level by 2 levels."              One of the

examples of the types of conduct covered by this enhancement is

"threatening, intimidating, or otherwise unlawfully influencing a

co-defendant,   witness,   or    juror,   directly   or    indirectly,   or

attempting to do so."      

defined "willful" to

require the defendant to act "deliberately and with the intent to

hinder justice," United States v. Teta, 

, 1333 (7th


     2
          Similarly, the government contends that the obstruction
of justice enhancement "does not state that the defendant must
have prior knowledge that an official investigation has been
undertaken," and it further asserts that "it is of no consequence
that Defendant was not aware an official investigation of his
drug activities was under way."

                                    6
Cir. 1990); see United States v. Rivera, 

, 894 (2d Cir.

1992) (noting that the defendant must have "consciously act[ed]

with   the   purpose   of   obstructing   justice"   (internal   quotation

omitted)), but the interpretive question before us is whether the

term     "willfully"    contemplates      "an   understanding    that   an

investigation of a defendant's conduct has probably begun, or

simply means that the defendant was generally knowledgeable as to

the likely effect of a threat on the person to whom the conduct is

directed."    United States v. Oppedahl, 

, 585 (8th Cir.

1993).

       The term "willful," unfortunately, is a term with "no fixed

meaning," Smith v. Wade, 

, 63 n.3 (1983) (Rehnquist, J.,

dissenting), and the Supreme Court has counseled that the term's

construction is often "influenced by its context." Spies v. United

States, 

, 497 (1943).          To understand the context in

which we base our decision today, an examination of the pertinent

case law is necessary.

       In United States v. Luna, 

(5th Cir. 1990), the

appellant committed an assault with a gun and concealed the gun

before the crime was reported and before an investigation had

commenced.     See 

      The government conceded that an

investigation of the offense did not begin until several hours

after the gun was concealed.        The district court found that an

obstruction of justice enhancement was appropriate "because the

concealment of the weapon constituted obstruction of justice." 

emphasizing the temporal language of the enhancement:


                                     7
"during the investigation or prosecution of the instant offense."3

As we explained:

     In the instant case it is undisputed that no
     investigation had begun when appellant concealed the gun.
     It is equally clear that appellant concealed the weapon
     so that his crime would go unpunished.
     . . .
     The government relies on three cases[,] all of which are
     factually inapposite since in each of those cases the
     investigation was already underway at the time the
     defendants attempted to conceal or destroy the evidence.

(footnote omitted). From this language, it is

clear    that    Luna     established   a   temporal     requirement   for   the

obstruction of justice enhancement, but the opinion did not address

whether a defendant's awareness of the investigation is also

required before the enhancement can be imposed.

     In United States v. Wilson, 

(5th Cir. 1990),

however, we did hint that a defendant's awareness may be necessary

for imposition of the enhancement.            Wilson used an alias and gave

a package containing firearms to a Federal Express agent in Dallas

for delivery to New York.        See 

      Wilson did not tell the

Federal Express agent that the package contained firearms, nor did

Wilson know that agents of the Bureau of Alcohol, Tobacco, and

Firearms were watching nearby.                See 

the

district court found that an obstruction of justice enhancement was

warranted       because    "Wilson's    use    of   an    alias   impeded    the

investigation of the offense."          

slight difference in the language of the
enhancement is due to the fact that an earlier version of the
Sentencing Guidelines was at issue in Luna.

                                        8
      We reversed this finding on appeal, and we intimated that a

defendant cannot obstruct justice (in the context of the sentencing

enhancement) without an awareness that an investigation into his

behavior has commenced.    As we observed:

      There is simply no evidence that Wilson wil[l]fully
      impeded or obstructed the administration of justice, or
      attempted to do either, during the investigation or
      prosecution of his offense. Wilson did not misrepresent
      his   identity   to   law   enforcement   officers;   he
      misrepresented it to Federal Express.     At that time,
      Wilson was unaware that any investigation was taking
      place and prosecution had not yet begun.      His intent
      clearly was not to impede the investigation or
      prosecution of his offense. His intent was to disguise
      himself in such a way so that his crime would go
      unpunished. At that he was unsuccessful, and he deserves
      to be punished for his underlying offense. An increase
      in his offense level is, however, unwarranted.

added).     Wilson alone, however, cannot stand

for   the   proposition   that   a       defendant's   awareness   of   the

investigation is independently necessary before the enhancement can

be imposed. After all, the above-quoted language suggests that the

temporal requirement was also not met in Wilson, and we did not

explain the extent to which this temporal problem led to our

conclusion.4

      The Eighth Circuit, however, did address the independent

significance of this awareness issue in a case strikingly similar

to the one now before us.    In Oppedahl, the defendant was an LSD


      4
          Indeed, in the subsequent Luna decision, we stated that
our inquiry was guided by Wilson, and we focused on the temporal
language in Wilson that there was "simply no evidence that Wilson
willfully impeded or obstructed the administration of justice or
attempted to do so either, during the investigation or
prosecution of his offense." 

(quoting

).

                                     9
dealer, and during the course of dealing with a customer, the

defendant remarked "that he would kill the customer if he ever

`narked' on his 

.     At the time, the

defendant was unaware that his conversation had occurred when he

and his customer were under suspicion and when an investigation

into their conduct had already begun.    See 

Officer recommended an obstruction of justice

enhancement, but the district court rejected the suggestion.      See

found that the customer was intimidated by the

threat, but it held that there was no "willful" obstruction of

justice when the defendant was unaware of the investigation.      See

the Eighth Circuit affirmed, and it provided the

following insightful analysis:

      It would be anomalous for the Sentencing Commission to
      direct that sentences be enhanced for threatening conduct
      during the course of a totally unknown investigation,
      while providing that similarly culpable conduct would not
      result in an enhancement if there were no investigation.
      Deterrence would not be served by such a rule, absent
      some awareness of the investigation.      Culpability is
      identical, by definition.     We believe that the term
      "willfully" should be reserved for the more serious case,
      where   misconduct    occurs   with   knowledge   of   an
      investigation, or at least with a correct belief that an
      investigation is probably underway. Thus, the deterring
      effect of the Guideline is advanced, at least in theory.

(emphasis added); see also United States v. Perry, 

, 312 (6th Cir. 1993) (denying an obstruction of justice

enhancement for sending alleged robbery proceeds to a girlfriend in

another state because "[a]t the time [the defendant] sent the

money, he had no knowledge that an investigation was underway, he




                                 10
did not subvert the investigation by his act, and he did not effect

a delay in the prosecution of his crime" (emphasis added)).

      This Oppedahl reasoning is consistent with the direction of

our   Luna    and     Wilson    decisions,    and    we     too   believe     that    the

obstruction of justice enhancement should apply only to those cases

where misconduct occurs with the defendant's knowledge of an

investigation, or at least with the defendant's correct belief that

an investigation is probably underway.                    Thus, we find that the

obstruction      of    justice    enhancement       involves       both   a   temporal

requirement and an awareness requirement -- requirements that

reflect the notion that once government action has been initiated,

and an individual is aware of such action, we expect and encourage

that individual to cooperate and to comply with the authorities,

and that cooperation and compliance includes the cessation of any

conduct that facilitates the successful completion of a crime.5

      As     mentioned,    in    the   instant      case,    the    PSR   noted      that

"[s]ubsequent to defendant Lister requesting identification of


      5
          In this respect, the cases cited by the government from
this circuit are inapposite, as they all involve contested
conduct when the defendant knew that the authorities were
investigating or seeking to inquire about certain behavior. The
government's cases emphasize that at the time of the obstructive
conduct, the authorities were actually investigating an offense
other than the eventual offense of conviction on which the
enhancement was applied. This distinction, however, is not
relevant to the awareness requirement, as flouting authority
after an individual possesses an awareness of the involvement of
the authorities is the type of conduct that the enhancement
focuses upon, regardless of the specific behavior that got the
authorities involved in the first place. The government's
distinction may be relevant to whether the temporal requirement
is satisfied, but that question is not before us in this case,
and we express no opinion on the issue.

                                         11
[Demond], he stated that he believed that [Demond] might be a

police officer" (emphasis added). Lister then made his threatening

statements to Demond. In addition, the PSR later noted that "[t]he

defendant made specific threats to [Demond] when he suspected that

[she] might be an undercover officer."          The district court adopted

these findings, and they clearly indicate that Lister made his

threatening statements with a belief that an investigation was

probably underway.        Because Lister was correct in this belief, the

district court did not err in imposing the enhancement.6

                     C.   Acceptance of Responsibility

     Lister contends that he should have received a downward

adjustment for acceptance of responsibility, and he argues that he

was improperly denied such an adjustment because of the district

court's erroneous obstruction of justice finding.             As we observed

in United States v. Cartwright, 

, 304 (5th Cir. 1993),

cert. denied, 

(1994), we have applied various

standards    to    reviewing   a   district    court's   refusal   to   credit

acceptance    of     responsibility:          clearly    erroneous,     without

     6
          In United States v. Roberson, 

, 609 (5th
Cir.), cert. denied, 

(1989), we observed that
"[a]lthough section 3C1.1 does not expressly require a link
between the offense of conviction and the obstruction, it refers
to a defendant's efforts to obstruct the `instant offense.' This
reference arguably requires a nexus between the obstruction and
the offense at issue." Despite Lister's attempts to separate the
count that he pled guilty to and the threats that he made to
Demond, it is clear that the threat to Demond was designed to
intimidate her and to prevent her from telling the authorities
about any of Lister's drug transactions, and we refuse to find
that the threat was limited only to a particular drug transaction
at a particular day and time. A nexus between the threat and the
count of conviction, if required, is clearly present in this
case.

                                      12
foundation, and great deference.         We noted, however, that "[t]here

appears to be no practical difference between the three standards."

the formulation, the sentencing guidelines

indicate that "[t]he sentencing judge is in a unique position to

evaluate a defendant's acceptance of responsibility."              U.S.S.G. §

3E1.1 (commentary).

       According to the Sentencing Guidelines, "[a] defendant who

enters a guilty plea is not entitled to an adjustment under this

section as a matter of right."        

the considerations in

determining whether a defendant qualifies for an acceptance of

responsibility deduction is "the timeliness of the defendant's

conduct in manifesting the acceptance of responsibility."                  

  adjustment   is    not   intended   to   apply   to a

defendant who puts the government to its burden of proof at trial

by denying the essential factual elements of guilt, is convicted,

and only then admits guilt and expresses remorse."             

an adjustment for acceptance of responsibility, the

district court did not rely solely on the obstruction of justice

findings. The PSR stated that "the defendant put the Government to

it's [sic] burden of proof at trial and did not enter a guilty plea

until the closing statements at trial.            This does not appear to

meet the criteria for the two-level reduction for acceptance of

responsibility."       The district court accepted the PSR's findings,

and we cannot say that the findings are "without foundation" or are

"clearly erroneous."       See United States v. Diaz, 

, 572

(5th    Cir.   1994)     (denying   an     acceptance   of   responsibility


                                      13
adjustment, in part because "Defendants waited until the morning of

trial to enter plea negotiations"); United States v. Wilder, 

,     1299   (5th   Cir.    1994)       (denying    an    acceptance     of

responsibility adjustment, in part because the defendant "did not

agree to plead guilty until the eve of trial, thereby putting the

government to much effort and expense preparing for trial").                        In

the    instant     case,   Lister     did    not    plead     guilty    and   accept

responsibility until he had put the government to its proof, and we

see no reason to disturb the district court's denial of a downward

adjustment.

                               III.    CONCLUSION

       For   the   foregoing   reasons,      the     sentence       imposed   by   the

district court is AFFIRMED.




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